Amicus Brief of Helen M. Alvare

Appeal: 14-1167 Doc: 88-1 Filed: 04/04/2014 Pg: 1 of 38
Case Nos. 14-1167(L), 14-1169, 14-1173

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
TIMOTHY B. BOSTIC, et al.,

Plaintiffs-Appellees,
and
JOANNE HARRIS, JESSICA DUFF, CHRISTY BERGHOFF, AND VICTORIA
KIDD, on behalf of themselves and all others similarly situated,
Intervenors,
v.
GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk
Circuit Court,
Defendant-Appellant,
and
JANET M. RAINEY, in her official capacity as State Registrar of Vital Records, et al.,
Defendant-Appellant,
and
MICHÈLE B. MCQUIGG, in her official capacity as Prince William County Clerk of
Circuit Court, et al.,
Intervenor/Defendant-Appellant.
On appeal from the United States District Court for the Eastern District of Virginia,
Norfolk Division
BRIEF OF AMICUS CURIAE HELEN M. ALVARÉ in Support of Defendants-
Appellants and Reversal
Henry P. Wall
1735 St. Julian Place, Suite 200
Columbia, South Carolina
Tel: (803) 252-7693
ATTORNEY FOR AMICUS CURIAE HELEN M. ALVARÉ

CORPORATE DISCLOSURE STATEMENT
AMICUS IS NOT A CORPORATE ENTITY.
i
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... i
TABLE OF AUTHORITIES ............................... Error! Bookmark not defined.iii
INTEREST OF AMICUS CURIAE .........................................................................1
SUMMARY OF ARGUMENT .................................................................................1
ARGUMENT .............................................................................................................4
I. The Supreme Court has regularly recognized with approval the
importance of states’ interests in the procreative aspects of opposite-
sex marriage. ....................................................................................................4
A. States have a substantial interest in the birth of children. .....................5
B. States have substantial interest in the way marriage socializes

children. .................................................................................................7
C. The view of marriage advocated by Plaintiffs focuses on adult

interests. ...............................................................................................11
II. Redefining marriage in a way that de-links sex, marriage and children
threatens to harm the most vulnerable Americans and exacerbate the
“marriage gap” responsible for increasing levels of social inequality in
America..........................................................................................................17
CONCLUSION ........................................................................................................29
CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)……………..30
CERTIFICATE OF SERVICE………………………………………………........31

ii
TABLE OF AUTHORITIES
Cases
Boddie v. Connecticut, 401 U.S. 371 (1971) .............................................................9
Butler v. Wilson, 415 U.S. 953 (1974) .....................................................................13
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) ........................................12
Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973) ............................. 13, 14
Lehr v. Roberston, 463 U.S. 248 (1983) ..................................................................10
Loving v. Virginia, 388 U.S. 1 (1967) ................................................................ 5, 12
Maynard v. Hill, 125 U.S. 190 (1888) .......................................................................9
Meyer v. Nebraska, 262 U.S. 390 (1923) ..................................................................6
Moore v. City of East Cleveland, 431 U.S. 494 (1977) .............................................7
Murphy v. Ramsey, 114 U.S. 15 (1885) .................................................................8, 9
Parham v. J.R., 442 U.S. 584 (1979) .....................................................................7, 8
Prince v. Massachusetts, 321 U.S. 158 (1944) ..........................................................9
Reynolds v. United States, 98 U.S. 145 (1879) ..........................................................5
Skinner v. Oklahoma ex rel. Williamson, 361 U.S. 535 (1942).................................6
Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977) ... 8, 10
Troxel v. Granville, 530 U.S. 57 (2000) ....................................................................8
Turner v. Safley, 482 U.S. 78 (1987) ................................................................ 12, 13
United States v. Windsor, 133 S. Ct. 2675 (2013) ...................................................11
iii
Zablocki v. Redhail, 434 U.S. 374 (1978) .............................................................6, 7
Statutes
The Personal Responsibility and Work Opportunity Reconciliation Act of

1996, Pub. L. No. 104-193 (1996).................................................................17
Other Authorities
Amy L. Wax, Diverging family structure and “rational” behavior: the

decline in marriage as a disorder of choice, in Research Handbook on
the Economics of Family Law (Lloyd R. Cohen & Joshua D. Wright,
eds., 2011) ......................................................................................... 23, 26, 27
Andrew J. Cherlin, American Marriage in the Early Twenty-First Century,

The Future of Children, Fall 15(2) 2005 .......................................................23
Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J.

of Marriage & Fam. 848 (2004) ....................................................... 24, 25, 26
Andrew Sullivan, Here Comes the Groom: A (Conservative) Case for Gay
Marriage, New Republic (Aug. 28, 1989, 1:00 AM),
http://www.tnr.com/article/79054/here-comes-the-groom#
(describing marriage as a “deeper and harder-to-extract-yourself from
commitment to another human being”) .........................................................14
Daphne Lofquist, Same-Sex Couple Households, American Community

Survey Briefs, U.S. Census Bureau, Sept. 2011, available at
http://www.census.gov/
prod/2011pubs/acsbr10-03.pdf. .....................................................................15
Elizabeth Marquardt et al., My Daddy’s Name is Donor: A New Study of

Young Adults Conceived through Sperm Donation, Commission on
Parenthood's Future (2010)............................................................................20
Gary J. Gates, Family Focus on…LGBT Families: Family formation and

raising children among same-sex couples, National Council on
Family Relations Report, Issue FF51, 2011 ..................................................15
Helen M. Alvaré, Curbing Its Enthusiasm: U.S. Federal Policy and the
Unitary Family, 2 Int’l J. Jurisprudence Fam., 107 (2011)...........................17
iv
Helen M. Alvaré, The Turn Toward the Self in Marriage: Same-Sex

Marriage and its Predecessors in Family Law, 16 Stan. L. & Pol’y
Rev. 101 (2005) .............................................................................................19
Jennifer J. Kurinczuk & Carol Bower, Birth defects in infants conceived by

intracytoplasmic sperm injection: an alternative explanation, 315
Brit. Med. J. 1260 (1997) ..............................................................................20
John Witte, Jr., Response to Mark Strasser, in Marriage and Same-Sex

Unions 43 (Lynn Wardle et. al. eds., 2003).....................................................2
John Witte, Jr., The Goods and Goals of Marriage, 76 Notre Dame L. Rev.
1019 (2001) ....................................................................................................28
Karen Gardiner et al., State Policies to Promote Marriage: Preliminary

Report, The Lewin Group (Mar. 2002) .........................................................17
Kathryn Edin & Joanna M. Reed, Why Don’t They Just Get Married?
Barriers to Marriage among the Disadvantaged, The Future of
Children, Fall 15(2) 2005 ....................................................................... 21, 25
Lynn D. Wardle, Divorce Reform at the Turn of the Millennium: Certainties

and Possibilities, 33 Fam. L.Q. 783 (1999) ..................................................17
Mark Regnerus, How different are the adult children of parents who have
same-sex relationships? Findings from the new family structures
study, 41 Soc. Sci. Research 752 (2012) ................................................ 15, 16
Molly A. Martin, Family Structure and Income Inequality in Families With

Children, 1976-2000, 43 Demography 421 (2006) .......................................28
Pamela J. Smock & Wendy D. Manning, Living Together Unmarried in the

United States: Demographic Perspectives and Implications for Family
Policy, 26 Law & Policy 87 (2004) ........................................................ 17, 20
Pamela J. Smock, The Wax and Wane of Marriage: Prospects for Marriage
in the 21st Century, 66 J. of Marriage & Fam. 966 (2004) ...........................25
Richard Fry, No Reversal in Decline of Marriage, Pew Research Center

(Nov. 20, 2012), http://www.pewsocialtrends.org/2012/11/20/no-
reversal-in decline-of-marriage/ ....................................................................20
v
Talking about Marriage Equality With Your Friends and Family, Human
Rights Campaign, www.hrc.org/resources/entry /talking-about-
marriage-equality-with-your-friends-and-family (last visited Jan. 24,
2013) ..............................................................................................................14
The Decline of Marriage and Rise of New Families, Pew Research Center
(Nov. 18, 2010), http://www. pewsocialtrends.org/2010/11/18/the-
decline-of-marriage-and-rise-of-new-families/ .............................................20
The National Marriage Project and the Institute for American Values, When
Marriage Disappears: The Retreat from Marriage in Middle America,
State of Our Unions(2010), http://stateofourunions.org/2010/when-
marriage-disappears. ......................................................................... 20, 22, 28
The President’s Council on Bioethics, Reproduction and Responsibility: The

Regulation of New Biotechnologies (2003) ...................................................19
W. Bradford Wilcox & Andrew J. Cherlin, The Marginalization of Marriage

in Middle America, Brookings, Aug. 10, 2011................................. 21, 22, 23
Wendy Wang & Paul Taylor, For Millennials, Parenthood Trumps

Marriage, Pew Research Center (Mar. 9, 2011),
http://www.pewsocialtrends.org/2011/03/09/for-millennials-
parenthood-trumps-marriage/ ........................................................................24
vi
INTEREST OF AMICUS CURIAE1
Amicus Helen M. Alvaré is a law professor who has written extensively
about family law, with a special focus on issues involving legislative and judicial
treatment of marriage and parenting. She is committed to the public interest and in
particular to the marriage and parenting circumstances of the least privileged
Americans. Based upon her research into the history of constitutional marriage law
and the evolving meaning of “marriage” among less-privileged Americans, she
believes that states have a substantial interest in supporting and encouraging
marriage among opposite-sex couples in order to highlight the procreative aspects
of marriage, and in declining to extend similar recognition to same-sex couples.
SUMMARY OF ARGUMENT
The state has a substantial interest in recognizing and encouraging marriage
between opposite-sex pairs of adults who commit to one another for exclusive,
long-run, sexually intimate relationships, on the grounds of these pairs’
intrinsically procreative capacity, and their fitness for childrearing. At the same
time, the state has a substantial state interest in disclaiming a similar interest in
same-sex pairs of adults who wish to commit to exclusive, long-run, sexually
1
No party’s counsel authored the brief in whole or in part, and no one other than
the amicus curiae, or her counsel contributed money intended to fund the
preparation or submission of this brief. This brief is filed with the consent of all
parties, and therefore no motion for leave to file is required. See Fed. R. App. P.
29(a).
1
intimate relationships, but who explicitly deny the link between marriage and
children, and who seek to portray marriage as merely a “capstone” for adults’
emotional connection. To hold otherwise would not only undercut the state’s
important interests in marriage, but would undermine the common good and
perpetuate a “retreat from marriage” that is already apparent among the most
vulnerable Americans.
The Supreme Court has repeatedly described the state’s interests in marriage
as the interweaving of three benefits to society: (1) stable commitment between
intimate, opposite-sex pairs of adults, (2) the procreation and rearing of children,
and (3) the formation of a decentralized, democratic society. These holdings derive
from historical observations about the shape and functions of the marital family. In
the words of a leading expert on the history of marriage in Western law:
For nearly two thousand years, the Western legal tradition reserved
the legal category of marriage to monogamous, heterosexual couples
who had reached the age of consent, who had the physical capacity to
join together in one flesh, and whose joining served the goods and
goals of procreation, companionship and stability at once.2
This “core understanding of the form and function of sex and marriage” appeared
not only in various religious doctrines, but also in the works of the Greek Platonists
and Aristotelians, Roman jurists, and Enlightenment philosophers.3
2
John Witte, Jr., Response to Mark Strasser, in Marriage and Same-Sex Unions
43, 45 (Lynn Wardle et al., eds., 2003).
3
Id. at 45–46.
2
The wisdom of the Supreme Court’s precedents recognizing the states’
interests in childbirth, childrearing, and societal stability is today more apparent
than ever. New empirical studies reveal the consequences of diminishing the
procreative aspects of marriage in favor of adults’ interests.
In the United States, especially over the last 50 years, the links between sex,
marriage, and procreation have weakened considerably in both law and culture,
with repercussions for adults, children, and society as a whole. Marriage is
understood less as the gateway to adult responsibilities, centered most often upon
the needs of children, and more as the “capstone” for establishing a “soulmate”
relationship with another adult.
The harmful consequences of this adult-centered understanding of marriage
have not been equally distributed across society. Rather, the most vulnerable
Americans—those without a college education, the poor, and minority groups—
have suffered more: they marry less, divorce more, experience lower marital
quality, and have far more nonmarital births. Both adults and children suffer, as
does the social fabric generally, with the “marriage gap” acting as a major engine
of social inequality.
Plaintiffs ask this Court to declare that Utah has no interest in the procreative
aspects of marriage generally: bearing and rearing biologically related children.
They ask the Court (and Utah) to re-frame marriage simply as the government’s
3
and society’s stamp of approval for two persons’ mutual emotional and romantic
attachments. Yet the new understanding of marriage advocated by Plaintiffs is
dangerous, particularly for under-privileged Americans, because it is closely
associated in a substantial body of literature with the retreat from marriage among
the poor, the less-educated, and minority groups. States have a strong interest in
affirming opposite-sex marriage, without any animus toward gays and lesbians, in
order to preserve the vital link between sex, marriage, and children, and to avoid
further harm to the common good and rupture of the social fabric between the
privileged and less-privileged.
ARGUMENT
I. The Supreme Court has regularly recognized with approval the

importance of states’ interests in the procreative aspects of opposite-sex
marriage.
The Supreme Court has written a great deal on the nature of the states’
interests in the context of evaluating state laws affecting entry into or exit from
marriage, or concerning parental rights and obligations. Typically, these
statements recognize that states are vitally interested in marriage because
marriage furthers the common good by affording advantages not only to adults
but also to children and to the larger society. Children replenish communities, and
communities benefit when children are reared by their biological parents because
those parents best assist children to become well-functioning citizens. The Court
4
does not give special attention to adults’ interests or accord them extra weight.
Nor does the Court vault the interests of some children over the interests of all
children generally.
The following subsections consider the various manners in which the
Supreme Court has discoursed approvingly about marriage and parenting as
expressing states’ interwoven interests in the flourishing of adults, children, and
society.
A. States have a substantial interest in the birth of children.
One central theme in the Supreme Court’s cases discussing marriage focuses
on the importance of perpetuating the next generation of citizens. In the case
refusing to allow polygamy on the grounds of the Free Exercise Clause, Reynolds
v. United States, the Court explained states’ interests in regulating marriage with
the simple declaration: “Upon [marriage] society may be said to be built.”4 Nearly
100 years later in Loving v. Virginia, striking down a state’s anti-miscegenation
law, the Court referred to marriage as “fundamental to our very existence and
survival,” necessarily endorsing the role of marriage in propagating society
through childbearing.5
4
98 U.S. 145, 165 (1879).
5
388 U.S. 1, 12 (1967).
5
Even in cases where only marriage or childbearing was at issue, but not both,
the Court has referred to “marriage and childbirth” together in the same phrase,
nearly axiomatically. The following cases illustrate:
 In Meyer v. Nebraska, which vindicated parents’ constitutional right
to have their children instructed in a foreign language, the Court
referred not merely to parents’ rights to care for children, but to
citizens’ rights “to marry, establish a home and bring up children.”6
 In Skinner v. Oklahoma ex rel. Williamson, concerning a law
punishing certain classifications of felons with forced sterilization, the
Court opined: “Marriage and procreation are fundamental to the very
existence and survival of the race.”7
 In Zablocki v. Redhail, which struck down a Wisconsin law restricting
marriage for certain child support debtors, the Court wrote: “[I]t
would make little sense to recognize a right of privacy with respect to
other matters of family life and not with respect to the decision to
enter the relationship that is the foundation of the family in our
society.”8 As in Loving, Zablocki reiterated that marriage is
6
262 U.S. 390, 399 (1923).
7
361 U.S. 535, 541 (1942).
8
434 U.S. 374, 386 (1978).
6
“fundamental to our very existence and survival,”9 and recognized the
right to “deci[de] to marry and raise the child in a traditional family
setting.”10
 The 1977 opinion in Moore v. City of East Cleveland, announcing a
blood-and-marriage-related family’s constitutional right to co-reside,
nonetheless referenced the procreative aspect of family life stating:
“[T]he institution of the family is deeply rooted in this Nation’s
history and tradition. It is through the family that we inculcate and
pass down many of our most cherished values, moral and cultural.”11
 Similarly, in Parham v. J.R., a case treating parents’ rights to direct
their children’s health care, the Court stated: “Our jurisprudence
historically has reflected Western civilization concepts of the family
as a unit with broad parental authority over minor children.”12
B. States have substantial interest in the way marriage socializes

children.
A second prominent theme in the Supreme Court’s cases touching upon
marriage is the unique importance of the marital family for forming and educating
citizens for the continuation of a free, democratic society.
9
Id. at 383.
10
Id. at 386.
11
431 U.S. 494, 503-04 (1977).
12
442 U.S. 584, 602 (1979).
7
Preliminarily, in cases in which natural parents’ interests in directing
children’s upbringing have conflicted with the claims of another, the Court has
approvingly noted the importance of the bond between parents and their natural
children. This is found in its observations that states presume that biological
parents’ “natural bonds of affection” lead them to make decisions for their children
that are in the children’s best interests. Statements in this vein have been made in
Parham v. J.R. (“historically [the law] has recognized that natural bonds of
affection lead parents to act in the best interests of their children”13), in Smith v.
Organization of Foster Families for Equality & Reform (families’ “blood
relationship” forms part of the “importance of the familial relationship, to the
individuals involved and to the society”14), and in the “grandparents’ rights” case
Troxel v. Granville (“there is a presumption that fit parents act in the best interests
of their children”15).
Moreover, for over 100 years, the Supreme Court has reiterated the
relationship between marriage and childrearing for the benefit of a functioning
democracy. In Murphy v. Ramsey, for example, the Court opined:
For certainly no legislation can be supposed more wholesome and

necessary in the founding of a free, self-governing commonwealth . . .
than that which seeks to establish it on the basis of the idea of the
family, as consisting in and springing from the union for life of one
13
Id. at 602.
14
431 U.S. 816, 844 (1977).
15
530 U.S. 57, 68 (2000).
8
man and one woman in the holy estate of matrimony; the sure
foundation of all that is stable and noble in our civilization; the best
guaranty of that reverent morality which is the source of all beneficent
progress in social and political improvement.16
The 1888 decision of Maynard v. Hill referred to marriage as “having more
to do with the morals and civilization of a people than any other institution,” and
thus marriage is continually “subject to the control of the legislature.”17 And in
1943, in the course of an opinion affirming parents’ authority over their children
within the limits of child labor laws, the Supreme Court explicitly linked good
childrearing practices to a healthy society, saying: “A democratic society rests, for
its continuance, upon the healthy well-rounded growth of young people into full
maturity as citizens, with all that implies.”18
Reflecting upon states’ continual interest in marriage legislation, in a case
concerning the affordability of divorce process, Justice Black’s dissenting opinion
(objecting to the expansion of the federal Due Process Clause) in Boddie v.
Connecticut asserted that: “The States provide for the stability of their social order,
for the good morals of all their citizens and for the needs of children from broken
homes. The States, therefore, have particular interests in the kinds of laws
regulating their citizens when they enter into, maintain and dissolve marriages.”19
16
114 U.S. 15, 45 (1885).
17
125 U.S. 190, 205 (1888).
18
Prince v. Massachusetts, 321 U.S. 158, 168 (1944).
19
401 U.S. 371, 389 (1971) (Black, J., dissenting).
9
In the 1977 case in which the Supreme Court refused to extend equal
parental rights to foster parents, the Court wrote about the relationships between
family life and the common good, stating: “[T]he importance of the familial
relationship, to the individuals involved and to the society, stems from the
emotional attachments that derive from the intimacy of daily association, and from
the role it plays in ‘promot[ing] a way of life’ through the instruction of children,
as well as from the fact of blood relationship.”20
And in the 1983 single father’s rights case, Lehr v. Robertson, the Court
referenced the social purposes of the family explicitly in terms of states’ legitimate
interest in maintaining the link between marriage and procreation. Refusing to treat
an unmarried father identically to a married father with respect to rights concerning
the child, the Court wrote: “marriage has played a critical role . . . in developing
the decentralized structure of our democratic society. In recognition of that role,
and as part of their general overarching concern for serving the best interests of
children, state laws almost universally express an appropriate preference for the
formal family.”21
In summary, it is fair to conclude, upon a review of the Supreme Court’s
family law jurisprudence, that states’ interests in the procreational aspects of
20
Org. of Foster Families, 431 U.S. at 844 (citation omitted).
21
463 U.S. 248, 257 (1983).
10
marriage have been both recognized by the Court and affirmed to be not only
legitimate, but essential to furthering the common good of society.
The Supreme Court’s recent decision in United States v. Windsor22 is not to
the contrary. There, the majority did not devote even a single line of its opinion to
any state’s interests in marriage recognition. Instead, the Court disclaimed what it
found to be the federal government’s interest in directing states’ policy on
marriage, a subject within the states’ “virtually exclusive province” and over which
they “possess[] full power.”23 Stated differently, Windsor did not grapple with the
states’ interest in adopting one marriage policy over another, but rather “confined”
its “opinion and its holding” to the federal government’s interest in refusing to
recognize a class of marriages deemed lawful in a minority of states.24 Windsor
thus does not undo the Supreme Court’s persistent affirmation of states’ interest in
linking marriage to childbearing and childrearing.
C. The view of marriage advocated by Plaintiffs focuses on adult

interests.
Undoubtedly the state also values adults’ interests in marriage: adult
happiness, mutual commitment, increased stability, and social esteem. Yet a view
of marriage that focuses solely on these personal adult interests is incomplete and
denies the Court’s decisions affirming the states’ interests in procreation and
22
133 S. Ct. 2675 (2013)
23
Id. at 2691.
24
Id. at 2696.
11
healthy childrearing by biological parents for the common good of society as a
whole. It also risks institutionalizing, in law and culture, a notion of marriage that
is at the core of an alarming “retreat from marriage” among disadvantaged
Americans.
Same-sex marriage proponents take great pains to excise references to
children when quoting the Supreme Court’s family law opinions. Plaintiffs, for
example, quote Cleveland Board of Education v. La Fleur25 without noting that the
freedom at issue there was a married teacher’s “deciding to bear a child.”26 Perhaps
the most egregious example of Plaintiffs’ selectively quoting from the Supreme
Court’s opinions addressing marriage is their misuse of Turner v. Safley, the case
in which the Court held that certain prisoners were required to have access to state-
recognized marriage.27 Plaintiffs cite Turner for the proposition that civil marriage
is an “expression[] of emotional support and public commitment.”28 However,
Turner explicitly acknowledged, in two ways, both the adults’ and the procreative
interests in marriage. First, Turner concluded that adults’ interests were only
25
Pls.’ Mot. for Summary Judgment at 4, ECF No. 32 (quoting Cleveland Bd. of
Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (discussing the “freedom of
personal choice in matters of marriage and family life”)).
26
414 U.S. at 640.
27
482 U.S. 78 (1987).
28
Pls.’ Mot. for Summary Judgment at 4, ECF No. 32 (citing Turner v. Safley, 482
U.S. 78, 95-96 (1987)).
12
“elements” or “an aspect” of marriage,29 and that marriage had other “incidents”
that prisoners would eventually realize, referring specifically to consummation, i.e.
heterosexual intercourse with a spouse.30 Second, Turner distinguished the
situation of prisoners who would someday be free, from that of prisoners who were
imprisoned for life and thus were foreclosed from parenting children.31 Turner
noted that in Butler v. Wilson32 the Supreme Court had summarily affirmed the
case of Johnson v. Rockefeller,33 in which inmates imprisoned for life were denied
marriage, in part upon the rationale that they would not have the opportunity to
procreate or rear children. Said the Johnson court: “In actuality the effect of the
statute is to deny to Butler only the right to go through the formal ceremony of
marriage. Those aspects of marriage which make it ‘one of the basic civil rights of
man’—cohabitation, sexual intercourse, and the begetting and raising of children—
are unavailable to those in Butler’s situation because of the fact of their
incarceration.”34
In reality, Plaintiffs ask this Court to insist that Utah enact and convey a new
understanding of marriage. This new understanding would signify that what the
state values about sexually intimate couples is their emotional happiness and
29
482 U.S. at 95–96.
30
See id. at 96.
31
Id.
32
415 U.S. 953 (1974).
33
365 F. Supp. 377 (S.D.N.Y. 1973).
34
Id. at 380 (citation omitted).
13
willingness to commit to one another, exclusively, for a long time.35 However, this
understanding completely disregards the procreative aspects of marriage that the
Supreme Court has recognized as vital to the common good. At the same time, it
paints a picture of marriage closely associated with a retreat from marriage among
the most vulnerable Americans.
Notably, proponents of same-sex marriage acknowledge the power of
marriage laws to affect citizens’ perceptions and behavior. Indeed, a change of
perceptions and behaviors is precisely what Plaintiffs sought in bringing suit.
Plaintiffs specifically urge that marriage not be understood to imply procreation or
to further any social good beyond the purely personal interests of the spouses.
Only one group of children consistently features in Plaintiffs’ and other
same-sex marriage advocates’ arguments: children currently reared in same-sex
households. Plaintiffs claim that these children will be helped, indirectly, via the
social approval that would flow to the same-sex partners in the children’s
35
Well-known same-sex marriage advocates urge a similar understanding of
marriage. See, e.g., Andrew Sullivan, Here Comes the Groom: A (Conservative)
Case for Gay Marriage, New Republic (Aug. 28, 1989, 1:00 AM),
http://www.tnr.com/article/79054/here-comes-the-groom# (describing marriage as
a “deeper and harder-to-extract-yourself from commitment to another human
being”); Talking about Marriage Equality With Your Friends and Family, Human
Rights Campaign, www.hrc.org/resources/entry /talking-about-marriage-equality-
with-your-friends-and-family (last visited Jan. 24, 2013) (describing marriage as
“the highest possible commitment that can be made between two adults”).
14
household if their “parents” were married. Yet this children-based argument is
flawed.
First, it is not at all clear that granting marriage to same-sex partners equates
with bringing marriage into the lives of such children’s “parents.” It appears from
at least one nationally representative sample of children who lived in same-sex
households before the age of 18,36 and a recent analysis of the U.S. Census,37 that
the vast majority of children—approximately 84%38—were conceived in
heterosexual relationships and are presently living with one biological parent and
that person’s same-sex partner. Tremendous uncertainty, therefore, surrounds the
questions whether state recognition of same-sex marriage would bring “married
parents” to a large number of children and whether social approbation would
follow.
Second, the “jury is still out” on whether parenting in a same-sex household
advances the state’s critical interest in children’s, and therefore society’s,
formation. Recently, a peer-reviewed journal issued the first nationally
36
Mark Regnerus, How different are the adult children of parents who have same-
sex relationships? Findings from the new family structures study, 41 Soc. Sci.
Research 752 (2012).
37
Gary J. Gates, Family Focus on . . . LGBT Families: Family formation and
raising children among same-sex couples, National Council on Family Relations
Report, Issue FF51, 2011.
38
Daphne Lofquist, Same-Sex Couple Households, American Community Survey
Briefs, U.S. Census Bureau, Sept. 2011, available at http://www.census.gov/
prod/2011pubs/acsbr10-03.pdf.
15
representative study of children reared in a same-sex household.39 These children’s
outcomes across a host of emotional, economic and educational outcomes were
diminished as compared with children reared by their opposite-sex parents in a
stable marriage. The author of the study acknowledged that the question of
causation remains unknown; however, the children’s outcomes might indicate
problems with same-sex parenting, or even problems with family structure
instability, given that most children were conceived in a prior heterosexual
relationship by one of the adults later entering a same-sex relationship. The latter
possibility raises further questions about the overall stability of same-sex couples
and about the role played by bisexuality. This is relevant to child well-being given
that a consensus is emerging among social scientists that many poor outcomes for
children might be explained by instability in their parents’ relationships.40
Importantly, same-sex marriage proponents’ attempt to redefine “marriage”
to excise childbearing and childrearing comes at a time in history when new
empirical data shows that childbearing and childrearing in marriage is threatened—
a threat disproportionately visited upon the most vulnerable populations. States
have responded to the data. In fact, over the past 20 years, the legislatures in all 50
states have introduced bills to reform their marriage and divorce laws to better
39
See Mark Regnerus, supra.
40
Pamela J. Smock & Wendy D. Manning, Living Together Unmarried in the
United States: Demographic Perspectives and Implications for Family Policy, 26
Law & Policy 87, 94 (2004).
16
account for children’s interests in their parents’ marriages.41 The federal
government has done the same via the marriage-promotion sections of the
landmark “welfare reform” law passed in 1996 by bipartisan majorities and signed
into law by President Clinton.42 Furthermore, Presidents Bush and Obama, in
particular, have promoted extensive federal efforts on behalf of marriage and
fatherhood.43
In sum, the Supreme Court has repeatedly supported the states’ interests in
childbearing, childrearing, and social stability that are advanced by opposite-sex
marriages. That states may have ignored children’s interests too much in the past is
not a reason to prevent states from legislating to better account for both children’s
and society’s empirically supported interests in marriage.
II. Redefining marriage in a way that de-links sex, marriage and children
threatens to harm the most vulnerable Americans and exacerbate the
“marriage gap” responsible for increasing levels of social inequality in
America.
The disappearing of children’s interests in marriage, both at law and in
culture, and the vaulting of adults’ emotional and status interests, are associated
41
See, e.g., Lynn D. Wardle, Divorce Reform at the Turn of the Millennium:
Certainties and Possibilities, 33 Fam. L.Q. 783, 790 (1999); Karen Gardiner et al.,
State Policies to Promote Marriage: Preliminary Report, The Lewin Group (Mar.
2002).
42
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
Pub. L. No. 104-193 (1996).
43
See Helen M. Alvaré, Curbing Its Enthusiasm: U.S. Federal Policy and the
Unitary Family, 2 Int’l J. Jurisprudence Fam. 107, 121-24 (2011).
17
with a great deal of harm to the common good, particularly among the most
vulnerable Americans. This, in turn, has led to a growing gap between the more
and less privileged, threatening our social fabric. Recognizing same-sex marriage
would confirm and exacerbate these trends. Consequently, states legitimately may
wish to reconfirm their commitment to opposite-sex marriage and refuse to grant
marriage recognition to same-sex couples.
Speaking quite generally, law and culture before the 1960s normatively held
together sex, marriage, and children. Obviously, this was not true in the life of
every citizen or family, but social and legal norms widely reflected it. In the
ensuing decades, however, these links deteriorated substantially.
First, the link between sex and children weakened with the introduction of
more advanced birth control technology and abortion, both of which came to the
fore in the 1960s and were announced to be constitutional rights by the Supreme
Court in the 1960s and 1970s. Then, the link between marriage and children was
substantially weakened by the passage of no-fault divorce laws during the 1970s.
The transcripts of debates concerning the uniform no-fault divorce law reveal the
degree to which children’s interests were minimized in favor of adult interests,
sometimes with mistaken beliefs about children’s resiliency and sometimes on the
18
false assertion that most failing marriages were acrimonious such that divorce
would benefit, not harm, children.44
New reproductive technologies further separated children from marriage and
sex from children. Since the creation of the first “test tube baby” in 1978, which
spawned a billion-dollar industry in the United States, neither the federal
government nor any states have passed meaningful restraints on such practices.
There are today, still, almost no laws affecting who may access these technologies
or obtain “donor” sperm, oocytes, or embryos.45 This persists despite troubling
indications that “donor children” experience an enhanced risk of physical and
psychological difficulties.46
Interwoven with these developments is the declining stigma of nonmarital
sex, and even nonmarital pregnancies and births, which further separate sex from
marriage.
The effects of these legal and social developments are not evenly distributed
across all segments of the population. A robust and growing literature indicates
44
See Helen M. Alvaré, The Turn Toward the Self in Marriage: Same-Sex
Marriage and its Predecessors in Family Law, 16 Stan. L. & Pol’y Rev. 101, 137-
53 (2005).
45
See The President’s Council on Bioethics, Reproduction and Responsibility: The
Regulation of New Biotechnologies (2003).
46
See Elizabeth Marquardt et al., My Daddy’s Name is Donor: A New Study of
Young Adults Conceived through Sperm Donation, Commission on Parenthood's
Future (2010); Jennifer J. Kurinczuk & Carol Bower, Birth defects in infants
conceived by intracytoplasmic sperm injection: an alternative explanation, 315
Brit. Med. J. 1260 (1997).
19
that more privileged Americans—i.e. non-Hispanic Whites, and Americans with a
college education—are economically and educationally pulling away from other
social classes to an alarming degree.47
In the words of prominent sociologists W. Bradford Wilcox and Andrew J.
Cherlin:
In the affluent neighborhoods where many college-educated

American[s] live, marriage is alive and well and stable families are the
rule . . . . [T]he divorce rate in this group has declined to levels not
seen since the early 1970s. In contrast, marriage and family stability
have been in decline in the kinds of neighborhoods that we used to
call working class . . . . More . . . of them are having children in brittle
cohabiting unions. . . . [T]he risk of divorce remains high. . . .48
By the numbers, Americans with no more than a high school degree, African
Americans, and some groups of Hispanic Americans, cohabit more, marry less
often, divorce more, have lower marital quality, and have more nonmarital births
47
See, e.g., The Decline of Marriage and Rise of New Families, Pew Research
Center (Nov. 18, 2010), http://www. pewsocialtrends.org/2010/11/18/the-decline-
of-marriage-and-rise-of-new-families/; Richard Fry, No Reversal in Decline of
Marriage, Pew Research Center (Nov. 20, 2012),
http://www.pewsocialtrends.org/2012/11/20/no-reversal-in decline-of-marriage/;
Pamela J. Smock & Wendy D Manning, Living Together Unmarried in the United
States: Demographic Perspectives and Implications for Family Policy, 26 Law &
Pol’y 87 (2004); The National Marriage Project and the Institute for American
Values, When Marriage Disappears: The Retreat from Marriage in Middle
America, State of Our Unions (2010), http://stateofourunions.org/2010/when-
marriage-disappears.php (last visited Jan. 24, 2013).
48
W. Bradford Wilcox & Andrew J. Cherlin, The Marginalization of Marriage in
Middle America, Brookings, Aug. 10, 2011, at 2.
20
(sometimes by very large margins) than those possessing a college degree. A few
comparisons portray the situation.
 Among Americans with a college degree, the nonmarital birth rate is a
mere 6%. Among those with only a high school degree, the rate is
44%, and among those without a high school degree, the rate is 54%.49
 Poor men and women are only half as likely to marry as those with
incomes at three or more times the poverty level.50
 The children of these less-privileged groups are far less likely to be
living with both their mother and their father, more likely to have a
nonmarital pregnancy, and less likely to graduate college or obtain
adequate employment as an adult.51
Experts analyzing this retreat from marriage have considered the impact of
economic factors, such as the decline in adequately paying work for men, and a
belief by both sexes that a man should have a stable job before entering marriage.
But economic factors cannot explain the entire retreat, given that prior severe
49
Id.
50
Kathryn Edin & Joanna M. Reed, Why Don’t They Just Get Married? Barriers to
Marriage among the Disadvantaged, The Future of Children, Fall 15(2) 2005, at
117-18.
51
Wilcox & Cherlin, supra, at 6; The National Marriage Project, supra, at 10–11,
17 (citing Ron Haskins & Isabel Sawhill, Creating an Opportunity Society (2009);
Nicholas H. Wolfinger, Understanding the Divorce Cycle: The Children of Divorce
in Their Own Marriages (2005)).
21
economic downturns in the United States were not accompanied by the same
retreat from marriage or increases in nonmarital childbearing.52
Evaluating this issue, Law professor Amy Wax has observed that “the
limited research available suggests that men who were once regarded as
marriageable and were routinely married—including many men with earnings in
the lower end of the distributions—are now more likely to remain single than in
the past.” Furthermore, she points out that even though marriage brings certain
gains to any two persons—two incomes, economies of scale, divisions of labor,
and gains from cooperation—the less advantaged in society appear unmoved by
such benefits, for themselves or for their children.53
What best explains these trends among the disadvantaged are changes in
norms regarding the relationships between sexual activity, births and marriage.
Among these, researchers note legal changes emphasizing parenthood but not
marriage (e.g., strengthened child support enforcement laws), and emphasizing
individual rights as distinguished from marriage. They also point to the declining
stigma of nonmarital sex, particularly among the lesser educated, and the
availability of the pill for separating sex and children.54 As Professor Cherlin has
52
See Wilcox & Cherlin, supra, at 3.
53
Amy L. Wax, Diverging family structure and “rational” behavior: the decline in
marriage as a disorder of choice, in Research Handbook on the Economics of
Family Law 29-30, 31, 33 (Lloyd R. Cohen & Joshua D. Wright, eds., 2011).
54
Wilcox & Cherlin, supra, at 3-4.
22
noted, law and culture have made living arrangements other than marriage more
socially acceptable and practically feasible.55
Among the lesser privileged, a love relationship and stable employment for
the man are the precursors for marriage. The disadvantaged are far less concerned
than the more privileged about having and raising children outside of marriage.
Other evidence shows that this disconnect between marriage and children is
becoming characteristic not only of the disadvantaged, but also of the “millennial
generation.”56 Professor Cherlin confirms that among young adults who are not
necessarily poor, the idea of “soulmate” marriage is spreading. 94% of never-
married Millennials report that “when you marry, your [sic] want your spouse to be
your soul mate, first and foremost.” They hope for a “super relationship,” an
“intensely private, spiritualized union, combining sexual fidelity, romantic love,
emotional intimacy, and togetherness.”57
Emerging evidence concerning both the young and the less-privileged
indicates that marriage—once the gateway to adulthood and parenting—is viewed
55
Andrew J. Cherlin, American Marriage in the Early Twenty-First Century, The
Future of Children, Fall 15(2) 2005, at 41.
56
See Wendy Wang & Paul Taylor, For Millennials, Parenthood Trumps
Marriage, Pew Research Center, 2 (Mar. 9, 2011),
http://www.pewsocialtrends.org/2011/03/09/for-millennials-parenthood-trumps-
marriage/ (on the question of a child’s need for two, married parents, 51% of
Millennials disagreed in 2008, compared to 39% of Generation Xers in 1997).
57
Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. of
Marriage & Fam. 848, 856 (2004).
23
by the less-privileged as a “luxury good.” In the words of sociologists Kathryn
Edin and Joanna Reed: “Marriage has become a luxury, rather than a necessity, a
status symbol in the true meaning of the phrase.” These authors explain that the
socially disadvantaged place very high expectations upon relationship quality
within marriage. “If this interpretation is correct, the poor may marry at a lower
rate simply because they are not able to meet this higher marital standard.” And
there is a sense among the disadvantaged that marriage is reserved to those who
have “arrived” financially.58
Analyzing the decline of stable marriage in this country, Professor Cherlin
points to an emphasis on emotional satisfaction, romantic love and an “ethic of
expressive individualism that emerged around the 1960s.” There is a focus on
purely personal bonds of sentiment, and the emotional satisfaction of spouses
becomes an important criterion for marital success.59 Professor Cherlin also
observes that in the later 20th century, “an even more individualistic perspective on
the rewards of marriage took root.” It was about the “development of their own
sense of self and the expression of their feelings, as opposed to the satisfaction they
gained through building a family and playing the roles of spouse and parent. The
58
Edin & Reed, supra, at 117, 121-22; see also Pamela J. Smock, The Wax and
Wane of Marriage: Prospects for Marriage in the 21st Century, 66 J. of Marriage
& Fam. 966, 971 (2004) (“[C]urrent thinking [is] . . . that our high expectations for
marriage are part of what is behind the retreat from marriage”).
59
Cherlin, The Deinstitutionalization of American Marriage, supra, at 851.
24
result was a transition from the companionate marriage to what we might call the
individualized marriage.”60
If this is all marriage means, why then do people continue to marry at all?
Professor Cherlin opines that they may be seeking what he calls “enforceable
trust,” a lowering of the risk that one’s partner will renege on agreements.61 Rather
than a foundation on which to build a family life, marriage becomes the “capstone”
of a preexisting, emotionally close relationship, with the wedding as a “symbol” of
the couple’s financial status and of their level of self development.62 Yet marriage
as a symbol of personal achievement is often beyond the experience or reach of the
lesser privileged. Expert literature thus confirms that shifting cultural norms about
marriage and procreation, the weakening of institutional structures, and changes in
notions of role responsibilities affect the least advantaged to a greater degree than
the privileged.63 Particularly for the disadvantaged, there is an “underappreciated
role for traditional institutions in guiding behavior.”64 In short, they require the
kind of robust, external affirmation about the importance of linking marriage and
children that leading institutions such as the law can provide.
60
Id. at 852.
61
Id. at 854.
62
Id. at 855, 857.
63
See, e.g., Wax, supra, at 15, 59-60.
64
Id. at 60.
25
In fact, Professor Wax concludes that a “strong marriage norm” is an
opportunity to “shape[] the habits of mind necessary to live up to its prescriptions,
while also reducing the need for individuals to perform the complicated
calculations necessary to chart their own course.”65 Of course, individuals’
decisions will be influenced by individual characteristics and circumstances, but
“nonetheless, by replacing a complex personal calculus with simple prudential
imperatives, a strong expectation of marriage will make it easier . . . for individuals
to muster the restraint necessary to act on long-term thinking.”66
A strong prescription in favor of marriage as the gateway to adult
responsibilities and to caring for the next generation would therefore likely
influence behavior in favor of bearing and rearing children by stably linked,
biological parents, ready and able to prepare children for responsible citizenship.
Simple rules and norms “place[] less of a burden on the deliberative capacities and
will of ordinary individuals.” If, however, individuals are left to guide sexual and
reproductive choices in a culture of individualism, “people faced with a menu of
options engage in a personal calculus of choice. Many will default to a local [short-
term, personal gain] perspective.”67
65
Id.
66
Id.
67
Id. at 61.
26
The “retreat from marriage” and marital childbearing affects not only
individuals and their communities; there is evidence that its problematic effects on
the common good are being felt even at the national level. Largely as a
consequence of changes to family structure, including the intergenerational effects
of the absence or breakdown of marriage, there is a growing income and wealth
gap in the United States among the least educated, the moderately educated, and
the college educated. According to a leading study of this phenomenon, family
structure changes accounted for 50% to 100% of the increase in child poverty
during the 1980s, and for 41% of the increase in inequality between Americans
from 1976 to 2000.68 The National Marriage Project even suggests that “it is not
too far-fetched to imagine that the United States could be heading toward a 21st
century version of a traditional Latin American model of family life, where only a
comparatively small oligarchy enjoys a stable married and family life.”69
In conclusion, marriage historian John Witte Jr. has observed that:
The new social science data present older prudential insights about
marriage with more statistical precision. They present ancient
avuncular observations about marital benefits with more inductive
generalization. They reduce common Western observations about
marital health into more precise and measurable categories. These
68
Molly A. Martin, Family Structure and Income Inequality in Families With
Children, 1976-2000, 43 Demography 421, 423-24, 440 (2006).
69
The National Marriage Project and the Institute for American Values, supra, at
17.
27
new social science data thus offer something of a neutral apologetic

for marriage.70
The purely personal notion of marriage that same-sex advocates are
describing, and demanding from this Court and from the State of Utah, closely
resembles the adult-centric view of marriage associated with the “retreat from
marriage” among disadvantaged Americans. It would intrinsically and overtly
separate sex and children from marriage, for every marriage and every couple and
every child. It promotes a meaning of marriage that empties it of the procreative
interests understood and embraced by Supreme Court precedents (and every prior
generation). Rather, as redefined by Plaintiffs, marriage would merely become a
symbolic capstone and a personal reward, not a gateway to adult responsibilities,
including childbearing, childrearing, and inculcating civic virtues in the next
generation for the benefit of society as a whole.
Of course, it is not solely the fault of same-sex marriage proponents that we
have come to a “tipping point” regarding marriage in the United States—where if
the procreational aspects of marriage are not explicitly preserved and highlighted,
additional harm will come upon vulnerable Americans and our social fabric itself.
The historic institution of marriage was already weakened, likely emboldening
same-sex marriage advocates to believe that a redefinition of marriage was only a
70
John Witte, Jr., The Goods and Goals of Marriage, 76 Notre Dame L. Rev.
1019, 1070 (2001).
28
step, not a leap, away. But in its essence, and in the arguments used to promote it,
same-sex marriage would be the coup de grâce to the procreative meanings and
social roles of marriage. It is hoped that the necessary movement for equality and
nondiscrimination for gays and lesbians will choose a new path, and leave
marriage to serve the crucial social purposes it is needed to serve.
CONCLUSION
For the foregoing reasons, the Court should reverse the judgment of the
district court.
Dated: April 4, 2014
Respectfully submitted,
s/
Henry P. Wall
Tel: (803) 252-7693
29
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Type-Volume Limitation, Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P.
28.1(e)(2) or Fed. R. App. P. 32(a)(7)(B) because:
This brief contains 6,742 words.
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because:
This brief has been prepared in a proportionally spaced typeface using
Microsoft Word in Times New Roman 14;
Date: April 4, 2014 s/

Henry P. Wall
Tel: (803) 252-7693
Attorney for Amicus Helen M. Alvare´
30
CERTIFICATE OF SERVICE
I certify that on April 4, 2014, the foregoing document was served on all
parties or their counsel of record through the CM/ECF system if they are registered
users or, if they are not, by serving a true and correct copy at the addresses listed
below:
Date: April 4, 2014. s/

Attorney Name
31

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Appeal: 14-1167 Doc: 88-1 Filed: 04/04/2014 Pg: 1 of 38

Case Nos. 14-1167(L), 14-1169, 14-1173

TIMOTHY B. BOSTIC, et al.,

ATTORNEY FOR AMICUS CURIAE HELEN M. ALVARÉ

CORPORATE DISCLOSURE STATEMENT

AMICUS IS NOT A CORPORATE ENTITY.

CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF AUTHORITIES ............................... Error! Bookmark not defined.iii

INTEREST OF AMICUS CURIAE .........................................................................1

SUMMARY OF ARGUMENT .................................................................................1

A. States have a substantial interest in the birth of children. .....................5

B. States have substantial interest in the way marriage socializes

C. The view of marriage advocated by Plaintiffs focuses on adult

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)……………..30

Boddie v. Connecticut, 401 U.S. 371 (1971) .............................................................9

Butler v. Wilson, 415 U.S. 953 (1974) .....................................................................13

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) ........................................12

Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973) ............................. 13, 14

Lehr v. Roberston, 463 U.S. 248 (1983) ..................................................................10

Loving v. Virginia, 388 U.S. 1 (1967) ................................................................ 5, 12

Maynard v. Hill, 125 U.S. 190 (1888) .......................................................................9

Meyer v. Nebraska, 262 U.S. 390 (1923) ..................................................................6

Moore v. City of East Cleveland, 431 U.S. 494 (1977) .............................................7

Murphy v. Ramsey, 114 U.S. 15 (1885) .................................................................8, 9

Parham v. J.R., 442 U.S. 584 (1979) .....................................................................7, 8

Prince v. Massachusetts, 321 U.S. 158 (1944) ..........................................................9

Reynolds v. United States, 98 U.S. 145 (1879) ..........................................................5

Skinner v. Oklahoma ex rel. Williamson, 361 U.S. 535 (1942).................................6

Troxel v. Granville, 530 U.S. 57 (2000) ....................................................................8

Turner v. Safley, 482 U.S. 78 (1987) ................................................................ 12, 13

United States v. Windsor, 133 S. Ct. 2675 (2013) ...................................................11

Zablocki v. Redhail, 434 U.S. 374 (1978) .............................................................6, 7

The Personal Responsibility and Work Opportunity Reconciliation Act of

Amy L. Wax, Diverging family structure and “rational” behavior: the

Andrew J. Cherlin, American Marriage in the Early Twenty-First Century,

Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J.

Daphne Lofquist, Same-Sex Couple Households, American Community

Elizabeth Marquardt et al., My Daddy’s Name is Donor: A New Study of

Gary J. Gates, Family Focus on…LGBT Families: Family formation and

Helen M. Alvaré, The Turn Toward the Self in Marriage: Same-Sex

Jennifer J. Kurinczuk & Carol Bower, Birth defects in infants conceived by

John Witte, Jr., Response to Mark Strasser, in Marriage and Same-Sex

Karen Gardiner et al., State Policies to Promote Marriage: Preliminary

Lynn D. Wardle, Divorce Reform at the Turn of the Millennium: Certainties

Molly A. Martin, Family Structure and Income Inequality in Families With

Pamela J. Smock & Wendy D. Manning, Living Together Unmarried in the

Richard Fry, No Reversal in Decline of Marriage, Pew Research Center

The President’s Council on Bioethics, Reproduction and Responsibility: The

W. Bradford Wilcox & Andrew J. Cherlin, The Marginalization of Marriage

Wendy Wang & Paul Taylor, For Millennials, Parenthood Trumps

INTEREST OF AMICUS CURIAE1

Amicus Helen M. Alvaré is a law professor who has written extensively

particular to the marriage and parenting circumstances of the least privileged

and the evolving meaning of “marriage” among less-privileged Americans, she

believes that states have a substantial interest in supporting and encouraging

marriage among opposite-sex couples in order to highlight the procreative aspects

of marriage, and in declining to extend similar recognition to same-sex couples.

The state has a substantial interest in recognizing and encouraging marriage

long-run, sexually intimate relationships, on the grounds of these pairs’